After being discharged, does a lawyer have to tell a former client about disciplinary action against the successor lawyer who handled a low settlement?

Plain-English summary

A lawyer represented a personal representative in a wrongful death suit against two defendants. After negotiating a policy settlement with one defendant, the client declined it and discharged the lawyer, who asserted a fee lien on any proceeds. Successor counsel later settled the case against the second defendant, which the discharged lawyer believed was unreasonably low. The discharged lawyer suspected a grievance against successor counsel might have motivated the small settlement and that almost no discovery had occurred; the court denied the discharged lawyer's request to question the former client about these matters. The discharged lawyer asked whether there was an ethical duty to notify the former client of successor counsel's disciplinary situation.

The opinion concluded that, like any other contract, a lawyer's contractual responsibilities to a client cease on discharge (citing State Bar of Michigan v Daggs and MRPC 1.16(a)). Some duties survive termination, the opinion noted: safekeeping the former client's property (MRPC 1.15), confidentiality (MRPC 1.6), and taking reasonable steps to protect the client's interests on withdrawal, such as reasonable notice and surrendering papers (MRPC 1.16(d)). But MRPC 1.16(d) does not impose an ongoing duty to counsel a former client about the advisability of a settlement reached after termination; MRPC 1.16(a) requires the opposite, that the lawyer not represent a former client after discharge. There is no continuing duty to protect a former client from the consequences of ignorance or ill-advised conduct, and imposing one would make lawyers unwitting fiduciaries of former clients.

The opinion concluded the discharged lawyer had no obligation to advise the former client about the disciplinary proceedings or to provide documents about them, because MRPC 1.4 governs communication during the representation, not after discharge. The opinion added that the lawyer was not prohibited from voluntarily contacting the former client with the information, and that whether the lawyer had a duty to report successor counsel under MRPC 8.3 could not be determined on the facts (the inquirer only suspected, but did not know, the settlement was low because of the discipline); a lawyer may voluntarily contact the Attorney Grievance Commission if doing so would not violate MRPC 1.6.

Currency note

This opinion was issued in 1994, before later amendments to the Michigan Rules of Professional Conduct. MRPC 1.16, 8.3, and the related rules have since been amended, and subsequent rule changes or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does a discharged lawyer have to keep advising a former client about new developments?

A: No. The opinion concluded a lawyer's responsibilities to a client cease on discharge, and MRPC 1.4's communication duty applies during the representation, not after.

Q: Must the discharged lawyer warn the former client that successor counsel is facing discipline?

A: No. The opinion concluded there is no ethical duty to advise the former client about successor counsel's discipline or to provide the discipline documents.

Q: Which duties do survive after discharge?

A: The opinion noted that confidentiality (MRPC 1.6), safekeeping property (MRPC 1.15), and reasonable steps to protect the client's interests on withdrawal, including surrendering papers (MRPC 1.16(d)), continue.

Q: May the discharged lawyer report successor counsel to the grievance commission?

A: The opinion concluded the facts did not show whether MRPC 8.3 was triggered (the lawyer only suspected the cause), but a lawyer may voluntarily contact the commission if doing so would not violate MRPC 1.6.

Background and rules framework

The opinion applied Michigan's termination and communication rules. MRPC 1.16(a) (Model Rule 1.16) requires withdrawal on discharge and bars representing a client thereafter; MRPC 1.16(d) requires reasonable steps to protect the client's interests on termination. MRPC 1.4 (Model Rule 1.4) governs communication during the representation. MRPC 8.3 (Model Rule 8.3) governs reporting another lawyer's misconduct. MRPC 1.0 (Model Rule 1.0) frames the client-lawyer relationship. The opinion relied on State Bar of Michigan v Daggs for the principle that the lawyer's obligation runs until relieved by the client or the court, and noted the surviving duties of confidentiality (MRPC 1.6) and safekeeping (MRPC 1.15).

Citations and references

Rules of Professional Conduct:

• MR 1.0 / MRPC 1.0 (client-lawyer relationship)
• MR 1.4 / MRPC 1.4 (communication during representation)
• MR 1.16 / MRPC 1.16(a), (d) (withdrawal on discharge; protecting client interests)
• MR 8.3 / MRPC 8.3 (reporting professional misconduct)

Cases:

• State Bar of Michigan v. Daggs, 384 Mich 729; 187 NW2d 227 (1971), lawyer's obligation runs until relieved by client or court

See also

• Mich Ethics Op. RI-156: discharged estate lawyer, suspected fraud, and document custody
• Mich Ethics Op. RI-88: reporting misconduct and no-grievance settlements
• Mich Ethics Op. RI-165: no duty to alert the prosecutor to a charging oversight

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1072&Type=6

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

RI-202

March 29, 1994

SYLLABUS

A discharged lawyer has no ethical duty to advise a former client about disciplinary action taken against the former client's successor counsel, which the discharged lawyer suspects may have impacted successor counsel's recommendation of a small wrongful death settlement.

References: MRPC 1.0, 1.4, 1.16(a) and (d), 8.3.

TEXT

A lawyer had been retained to represent a personal representative of an estate in a wrongful death suit against two defendants. After a policy settlement was negotiated with one defendant, the client declined to accept the settlement and discharged the lawyer. The lawyer asserted a lien for attorney fees earned against any proceeds forthcoming from resolution of the suit against the one defendant.

Eventually successor counsel presented a settlement agreement to the court for approval. The discharged lawyer believes that the case against the second defendant settled at an unreasonably low amount. The circuit court judge denied the discharged lawyer's request for permission to question the former client about whether the client knew about a grievance filed against successor counsel, which the discharged lawyer believes could have been a potentially motivating factor for the small settlement, and whether the client knew that almost no discovery had occurred in the year that successor counsel had handled the case.

The discharged lawyer now asks whether there is any ethical obligation to notify the former client of successor counsel's disciplinary situation or to forward a copy of the discipline order to the former client, so that the former client may be fully informed and can take whatever further action may be appropriate. Restated, the lawyer questions whether there is an ongoing duty to counsel a client about legal rights and remedies after the lawyer is discharged.

As with any other contract, a lawyer's contractual responsibilities to a client cease when the client discharges the lawyer (or in litigation matters, when the presiding adjudicator discharges counsel). "Once an attorney accepts a retainer to represent a client he is obliged to exert his best efforts wholeheartedly to advance the client's legitimate interests with fidelity and diligence until he is relieved of that obligation either by his client or the court." State Bar of Michigan v. Daggs, 384 Mich 729 187 NW2d 227 (1971). Emphasis added. MRPC 1.16(a) is consistent with Daggs, stating:

"(a) Except as stated in paragraph (c), a lawyer shall not represent a client, or where, representation has commenced, shall withdraw from the representation of the client if . . . .

"(3) the lawyer is discharged."

Certainly, termination from representation does not relieve the lawyer of certain continuing ethical obligations towards the former client. For instance, the lawyer has an ongoing duty to safekeep a former client's property under MRPC 1.15. A lawyer has a continuing duty of confidentiality under MRPC 1.6. Upon termination, the lawyer is bound to take reasonable steps to protect a client's interests such as giving reasonable notice to the client and surrendering papers and property to which the client is entitled. MRPC 1.16(d).

MRPC 1.16(d), however, does not impose upon a discharged lawyer an ongoing duty to counsel a former client about the advisability of a particular settlement reached after the lawyer's termination. In fact, MRPC 1.16(a) requires just the contrary, i.e., the lawyer shall not represent a former client after discharge. Moreover, there is no continuing duty to protect the former client from the consequences of ignorance or ill-advised conduct. To impose such a duty would make all lawyers unwitting fiduciaries of former clients to the lawyer's detriment and to the detriment of the lawyer's obligations to current clients.

The discharged lawyer has no ethical obligation to advise the former client about the status of disciplinary proceedings against the new lawyer, or to provide the former client with documents regarding the discipline proceedings. Since MRPC 1.4 contemplates communication during the term of the lawyer's representation of the client and not after discharge, the rule does not apply.

Although there is no ethical obligation to advise the former client, the lawyer would not be ethically prohibited from voluntarily contacting the former client to provide this information.

Whether the lawyer has an obligation to report the actions of the new lawyer to the Attorney Grievance Commission is a function of whether MRPC 8.3 was violated. The inquirer has provided no facts which enable the Committee to determine whether the duties under MRPC 8.3 have been triggered. We note, however, that the inquirer merely suspects but does not know, that the settlement was low because of successor counsel's disciplinary situation. Even if there is no obligation to report such actions, a lawyer may voluntarily contact the Attorney Grievance Commission, provided that such disclosure would not violate MRPC 1.6.